Modern Slavery Act 2015

The Modern Slavery Act is aimed at combating the crimes of slavery and human trafficking. These offences are described in general terms as: slavery, servitude, forced or compulsory labour, and human trafficking including (but not limited to) trafficking for prostitution and or exploitation.

As part of the Act, from 29 October 2015, all organisations that operate in the UK must make a slavery and human trafficking statement for each financial year in which their total turnover for the year is £36million or more. This will apply to each financial year ending on or after 31 March 2016.

The statement must set out the steps that the organisation has taken during the financial year to ensure that slavery and human trafficking has not taken place either within its own business or within any of its supply chains. This will include information about the organisation’s structure, business and supply chains, identification of any areas of risk, and any due diligence processes carried out in relation to slavery and human trafficking within its business and supply chains. There should also be a process for review of the steps taken on a regular basis and appropriate training for staff.

Holidays and Sickness

This is a slowly unfolding saga that many of you will already be very familiar with from earlier seminars. It is now well established that a worker who is on long term sick leave continues to accrue holiday entitlement and, if they are not able to take their holiday entitlement during the holiday year because of their sick leave then they can roll that holiday forward.

Until now, there had been some speculation as to how far forward the employee could carry the holiday. Case law from the EU had indicated that a minimum period of 15 months was required. However, the Employment Appeal Tribunal has now confirmed that (in the absence of any guidance from the government) a worker has up to 18 months to use the holiday accrued during sick leave.

This means that if your holiday year is the calendar year and a worker accrues 20 days holiday during 2015 that they have not been able to take because of sick leave, then they will have until 30 June 2017.

This applies to the 4.0 weeks’ holiday that workers are entitled to under EU law (this 20 days holiday for a full time member of staff and includes bank and public holidays). It does not apply to the 5.6 weeks’ holiday that workers are entitled to under UK law or any additional holiday that they are entitled to under their contract of employment.

This means that if a full time worker has a contractual entitlement to 30 days holiday including bank holidays, and before their sick leave starts they have taken 13 days holiday and had the benefit of 3 bank holidays, they will only be able to carry 4 days holiday forward: 20 – (13+3)) = 4

Discriminating against Companies?

The Employment Appeal Tribunal has found (in EAD Solicitors LLP and others v Abrams) that a limited company can bring a claim for direct discrimination where it has suffered detrimental treatment because of the protected characteristic of an individual with whom the company is associated.

Mr Abrams was a member of a limited liability partnership (LLP). He set up a limited company of which he was the sole director and shareholder and that limited company took his place as a member of the LLP while Mr Abrams continued to provide his services through the limited company. It is not unusual for self-employed individuals to offer their services through a limited company in this way to take the benefit of tax advantages in doing so.

When Mr Abrams reached the age of 62, the LLP objected to his limited company continuing as a member because he had reached their compulsory retirement age. The Employment Appeal Tribunal allowed Mr Abram’s claim that his limited company had been discriminated against on the grounds of age because of its association with him.

The Employment Appeal Tribunal has recognised that this could have wide implications. For example, a company may have a claim for discrimination under the Equalities Act 2010 if it has been shunned commercially because it has an openly homosexual CEO or has given financial support to a particular political party.

Gender Pay Gap Reporting

You may remember from our last seminar, that, before the general election, the coalition government had included a provision in the Small Business, Enterprise and Employment Act 2015 requiring the government to introduce regulations that would require both public and private sector employers with 250 or more employees to publish information showing whether there are differences in the pay of their male and female employees.

The government held a consultation in connection with the new regulations, which closed in September 2015. We are awaiting the results and the regulations, which are likely to come out in the first half of 2016. However, the government has announced an intention to require employers with 250 or more employees to publish information about bonuses issued to male and female employees as part of the pay gap reporting.

The regulations do pose a potential problem for employers. Not only is there an administrative burden in complying with the obligation to publish gender pay gap information, but there is a risk in disclosing salary information of employees that might result in demands for higher pay or poaching of key staff. In addition, where there is as gender pay gap, there may be reasons for this that are not reflected in the information that is published, which may be damaging for employee relations.

If you have 250 or more employees, you may want to review your pay information ahead of potential publication to identify what you may have to publish and, if there may be any adverse effect in publication, whether you can mitigate this in advance by consulting with your effected employees and/or adjusting pay.

Women on Boards

On 29 October 2015, Lord Davies published his final report on improving balance on British Boards of Directors and has concluded that quotas are not warranted and recommends that the voluntary business led approach to improving female board representation be continued for another five years.

A review of the FTSE 100 companies showed that at 1 October 2015 women held 26.1% of board positions in these companies and 9.6% of executive positions; there are no male only boards in the FTSE 100.

And finally…

Following the jailing of a senior Morrisons’ employee for eight years in July 2015, thousands more Morrisons’ staff are preparing to sue the supermarket for a breach of their personal data. This is because of a data leak that posted details of nearly 100,000 staff members’ salaries, national insurance numbers, dates of birth and bank account details.
Posted Friday 6th of November 2015